Judgment Upholds Liability Standard for Online Search Engines

The case was brought by the well-known model and businesswoman Valeria Mazza, who sued Google Inc. and Yahoo de Argentina S.R.L., following commercial and unconsented use of her image. According to Ms. Mazza, through the defendants’ search engine results, her image had been associated to pornographic websites.

The trial court rejected Ms. Mazza’s claim finding no negligence attributable to the codefendants. The Court of Appeals in Civil Matters overturned the trial court’s decision, admitting the claim and sentencing Google Inc. and Yahoo de Argentina S.R.L. to pay AR$ 800,000 and AR$ 450,000, respectively, for pain and suffering and monetary loss.

On appeal of an otherwise unappealable judgment (known locally as an “extraordinary” appeal), the case made it to the Supreme Court, which found the arguments in the case analogous to those in the Rodriguez and Gimbutas cases. Thus, it upheld the notion that the mere indexing activity performed by the defendants is protected by the right to freedom of speech and that such activity is not, prima facie, unlawful.

It added that search engines may be liable for third party content if (i) they have actual knowledge of its unlawful nature; and (ii) even with such knowledge, fail to delete the link to the website containing the name of the affected individual.

Notwithstanding the decision of the court majority, dissenting justices deemed the plaintiff’s personal rights to have been affected by the codefendants’ use of her image without her prior consent, thus breaching section 31 of Intellectual Property Law No. 11,723 and section 53 of the Civil and Commercial Code.

Contrarily, the court minority held that online search engines’ use of images cannot translate into the waiving of individuals’ right to defend and protect their personal right over their image.

Consequently, by majority, the Supreme Court admitted the defendants’ appeal, overturned the appellate court’s judgment, and rejected the plaintiff’s claim.

(“Mazza, Valeria Raquel c/ Yahoo SRL Argentina y otro s/ daños y perjuicios”)